SCOTUS Halts Transgender Student's Access to Boys' Room

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By Casey C. Sullivan, Esq. on August 04, 2016 11:59 AM

Gavin Grimm probably won't be able to use the boys' bathroom when he returns to school this fall. Grimm, a transgender high school student who was born female but identifies as a man, had sued for the right to use the men's bathroom. About a month ago, a federal district court issued a preliminary injunction against the Gloucester County School Board, in rural Virginia, ordering it to do just that: allow Grimm to use the bathroom that matched his gender identity.

But that order won't be going into effect anytime soon. The Supreme Court intervened in the dispute yesterday, staying the order pending the filing and disposition of the school board's cert petition.

From the Bathroom to the Supreme Court

When Grimm originally informed school administrators that he was transgender and transitioning, he had actually been allowed to use the boys' room. But, following a public backlash, the Gloucester County School Board adopted the opposite policy. Grimm, and any other transgender student, would be forced to use the bathroom that matched their birth sex, or a private bathroom in hastily converted broom closets.

Grimm, backed by the ACLU, sued, eventually winning a permanent injunction granting him the right to pee where he pleased, pending the disposition of the case. The Fourth Circuit refused to stay that order, and the school board asked the Supreme Court for an emergency stay. In their filing, they cited "severe disruption" to the school, should the injunction stand, including the threat of other students withdrawing, rather than sharing the bathroom.

Grimm, in response, argued that the best way to avoid irreparable harm was to allow the injunction to remain. Requiring him to use the "wrong" bathroom, or leading him to avoid using the bathroom at school altogether, could result in daily physical and psychological harm, Grimm argued.

SCOTUS Halts Bathroom Access

The Supreme Court was swayed by the school board. In a 5-3 vote, the court stayed the injunction, pending a cert filing and disposition. That could take several months, if not longer, but, the Court noted, should the cert petition be denied, the stay would end automatically. If it's granted, the stay will remain in place until the Court decides Grimm's case.

Justice Breyer joined the Court's four more conservative members to vote for the stay application, "as a courtesy." Had Justice Breyer been less courteous, the Court could have deadlocked on the emergency petition. Justices Ginsburg, Kagan, and Sotomayor all would have left the injunction standing.

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